Washington, D.C. — The U.S. Patent Office (“USPTO”) and federal courts may be affected by a government shutdown, which will begin tomorrow if Congress does not enact a continuing resolution to fund government operations today.
The federal court system will not be affected immediately. During the first 10 business days of a lapse in appropriations, the judiciary will use available fee and no-year balances to pay judges and court employees, and to maintain court operations. Courts will continue to operate, but court personnel have been instructed to conserve funding as much as possible by delaying or deferring expenses that are not critical to the performance of their constitutional responsibilities.
After the 10-day period, if there is still no appropriation, the judiciary will operate under the terms of the Anti-Deficiency Act, which allows “essential work” to continue during a lapse in appropriations. Among the definitions of “essential work” are powers exercised under the Constitution, which include activities to support the exercise of Article III judicial powers, specifically the resolution of cases.
The operations of the USPTO will also have a delay between the beginning of a government shutdown and an interruption in services, as it has a reserve fund, which can be spent to fund operations temporarily. It is likely that the office will remain open for several weeks after a shutdown to serve those filing patents. A subsequent fiscal challenge will likely occur on October 19, when the U.S. government’s debt reaches its current statutory limit, at which time the office would likely need to restrict spending significantly.
Practice Tip: The Guide to Judiciary Policy, Volume 13, Chapter 2, provides guidance to the federal judiciary on operating under a lapse in appropriations.